The U.S. Court of Appeals for the Eighth Circuit allows the federal government to “retroactively” cure certain constitutional defects in some gun cases against people based on marijuana use, according to reporting from multiple outlets. The decision concerns how courts determine whether a person is prohibited from possessing firearms.
The dispute centers on whether a finding of “dangerousness” can be made using a lower standard—such as a preponderance of the evidence—and whether the government can address constitutional problems after the fact. Yahoo News and Reason both describe litigation in which defendants challenge the approach as inconsistent with constitutional protections.
In a related effort, a petition to the Supreme Court argues the practice violates the Fifth Amendment by permitting a judicial determination of dangerousness that does not meet what the petitioners contend is the required constitutional process and evidentiary standard. Both outlets frame the issue as a procedural and constitutional question likely to draw further review.
